As experienced family law attorneys in the Denver area, we have seen a multitude of situations over the years in divorce, custody and child support cases. Having represented more clients than easily countable, we have observed certain scenarios arise, now and then, for which there is no specific statutory remedy or answer. In other words, we sometimes find ourselves pondering or debating why the Colorado Legislature, with multiple members and input from the domestic relations bar, could leave certain aspects of statute vague or with no specific rule? As we see these types of issue arise over and over, so should other attorneys. Regardless, the gaps go unchanged. Below are some of those gaps in statute, related to child support, which are in need of bridging through additional language.

1. C.R.S. 14-10-122 is the statutory section dealing with modification of child support. C.R.S. 14-10-122 indicates that a modification of child support can be applied retroactively to either the date a motion is filed, or when an agreed upon change in custody of a child occurs. The second scenario will still ultimately require a motion. The rationale in this retroactivity is that it can take some time for parties to actually obtain a court hearing and get a change to child support change formally effectuated or ruled upon. Despite these protections afforded to the parties, there are still instances in which statute could provide more guidance. One relates to stopping child support upon that change in custody, whether agreed upon or not. We have seen cases in which the child goes from mom to dad, or vice versa, and contrary to the terms of the current custody orders . In some cases, one party may take on the custodial obligations for the child, but continues to be saddled with paying the child support obligation until such time as the matter goes to court, if at all. Realistically, as simple rule indicating that when custody changes, regardless of agreed upon or not, the duty to pay child support automatically abates until such time as a hearing occurs. With this type of a black and white rule, the party taking custody of the child is not burdened with technically having to pay the other party until such time as a court hearing, which can take months. As a matter of fairness and financial practicality, the party obtaining custody shouldn’t have to go to court for other proceedings to get his or her Colorado child support stopped. Of course this is a separate issue from whether he or she wants to receive child support. Simple language, such as “when a change in primary residential care occurs, regardless of the reason, and regardless of whether the new custodial parent seeks a modification, the obligation to pay child support shall automatically be abated until such time as a hearing is held.” This language would not eliminate the potential for factual he-said/she-said arguments. It would, however, provide immediate relief.
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yellow-aspen-trees-9-1100273-m.jpgIn a Colorado divorce, when the court divides property, it must determine whether an asset is marital (subject to division) or separate (not subject to division). Generally, marital property doesn’t include property that spouses obtained before marrying or that they have agreed will remain separate. If a spouse places separate property into joint ownership with the other spouse, however, the court presumes he or she intended it to be marital property. This presumption can be rebutted by clear and convincing evidence. However, if separate property is commingled with marital property such that it can’t be traced back to separate property, it is transmuted into part of the marital estate.

In re the Marriage of Amy Corak and Nevan Corak considered a husband’s appeal of a Colorado trial court’s allocation of marital property. The case arose in 2010 when a couple entered into a prenuptial agreement. The agreement identified assets that would be separate property, which included a parcel of the husband’s property (“Shoshone”). All separate property was supposed to remain separate property if the marriage ended.

A month after the couple married, they purchased the Pinyon property. The husband pledged Shoshone as collateral for a home equity line of credit. This was to be used as a down payment for the new marital property. The couple decided they would use $16,000, drawn from the line of credit, to pay off the wife’s credit card debt from before the marriage.
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An experienced Denver family law attorney knows that a critical factor in how a case could be decided, should it go to full blown litigation, or a trial, is which judge the case will be in front of. In the body of law that encompasses divorce, child support, and custody, there are certain facts that leave little room for discretion in terms of how a court might rule. This could be a situation in which all monetary figures are known in a child support calculation and the only thing to be done is to apply the statutory formula. However, there are many other areas, such as determining visitation (parenting time) or equitable division of marital property in which a judge is given a wide range of latitude to render decisions she or he feels is in the child’s best interest or is “equitable.” With the presumption that all area judges render decisions in an ethically “fair” or appropriate manner, the reality is that subjectivity in terms of how a judge views a specific issue can come into play. It’s just human nature.

With years of experience, our attorneys strive to learn about each judge and to ascertain his or her leanings on the various family law topic which might arise in a case. As such, one of the first questions I will ask a client who comes to us with a case already under way is “which courtroom is your case in?” or “what judge or magistrate do you have?” Of course, I will then let the client know my opinion on how I think a particular issue will be dealt with. Sometimes, we may get case in which we know our client will have a tougher time meeting his or her objectives due to the courtroom he or she is in, or that the case might go a completely different way if heard somewhere else. At those instances, it is not uncommon for the client to ask “can we request a new judge?” In those instances, our response will almost always be, “no.”
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Whether a Douglas County divorce attorney, or one practicing just below the slopes of the Aspen ski hills, we all know the importance of financial disclosures in any divorce case. Colorado Rules of Civil Procedure rule 16.2 sets forth the procedural aspects, or rules, a court expects parties, with or without attorneys, to follow related to case management. This includes rules regarding disclosure of documents and information related to the financial issues of a divorce case, which can include property division, debt division, maintenance (alimony), and child support.

Sadly, from time to time, we see cases in which one party will attempt to hide assets from the other party. In most cases people are forthcoming, understanding that they are indicating to the divorce court, under penalty of perjury, that they have provided a complete listing of their assets and debts. However, every once in a while, you will get that one person who feels they might get away with not disclosing a bank account, stock account, or perhaps that tangible piece of property, such as artwork or a piece of expensive jewelry. Of course, there are limitations to what an attorney, or even a private investigator, might be able to find. In employing the tricks-of-the-trade, family law attorneys know how to go through the various financial disclosures to assess whether there are other items being concealed. Of course, this is not full proof. Likewise, people may come to an attorney after their divorce is done, indicating they believe the other side hid something from them. Fortunately, whatever the situation, statute affords parties to a Colorado divorce case a remedy, via a 5 year window, in which to seek relief should hidden or undisclosed assets become known.

Initially, C.R.C.P. Rule 16.2(e)(2) requires the parties to a divorce case to voluntarily disclose the following as can relate to assets:

A “Sworn Financial Statement”
The last three years of personal (and business if applicable)
Personal financial statements Business financial statements Real estate documentation Investment account statements Retirement account statements Employment benefit statements Bank statements Income documentation Insurance documentation Continue reading

hands-1402625-m.jpgChild support in Colorado is calculated according to the Colorado Child Support Guideline found at C.R.S. 14-10-115, revised in January 2014. In Denver and the surrounding areas, divorced parents must meet their child support obligations until the child is emancipated. This happens when the child graduates from high school, turns 19, joins the military, marries, becomes self-sufficient, or dies, whichever is earliest. Child support orders entered after July 1, 1997 terminate automatically when the youngest child reaches 19, unless the court has ordered otherwise. Sometimes the court orders child support to extend after this point, such as when a child is physically or mentally disabled and incapable of supporting himself or herself.

What happens if a parent fails to pay child support and the children are out of the home? Child support arrearages–child support that is still owed–must be paid even after the kids move out. The court must modify a child support order if the support is to be reduced for any reason. This means, for example, that if you owe child support for two children, and one child is emancipated while the other is not, you must still pay the total amount of child support until you obtain a modification from the court.

Generally, if you think there has been a substantial change in circumstances that warrants a change in child support, you should consult an Arapahoe County family law attorney to help you request a modification, rather than simply allowing arrearages to accumulate. A parent who is not paid child support for many years doesn’t waive the right to bring a claim for arrearages by delaying in seeking it.
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As we have earlier covered on this blog, same-sex marriages are now legal in Colorado because the United States Supreme Court decided not to hear any appeals regarding the constitutionality of same-sex marriage bans from the 10th Circuit. Now that same-sex civil marriages are recognized in Colorado, divorces are also possible, and with divorce will come child custody and visitation issues. Assuming both partners are legal parents of the child, the same standards will be used for child custody issues as are used when heterosexual couples divorce. The parents may both be legal parents of the child when the child is born into a same-sex marriage or when a non-biological or non-adoptive parent adopts his or her partner’s biological child through a second parent or stepparent adoption. The standard for child custody and visitation in that case will be the best interests of the child under C.R.S. 14-10-123.4. However, if only you or only your same-sex spouse is your child’s legal parent, you may need to bring a paternity or maternity petition in order to obtain custody and visitation when you and your spouse separate. Based on prior case law, it does not appear that Colorado child custody and visitation proceedings will be handled any differently because of the legalization of same-sex marriage. In general, it is to be expected that the Colorado courts will place the child’s best interests first and award parenting time to the parent who is not a legal parent when that parent has acted as a parent throughout the child’s life, and when there is no other biological parent whose rights would be affected. Continue reading

anxious-1-867286-m.jpgRecently, there has been significant public attention to issues of domestic violence around the nation. Domestic violence is a pattern of abusive behavior within a family or other intimate relationship. It can include spousal abuse or child abuse, and it can go beyond physical violence, including verbal abuse, emotional abuse, economic abuse, and psychological abuse. Last year, more than 10,000 domestic violence misdemeanor cases were filed, and this drop of 13% is considered an improvement. It is not uncommon for an abusive spouse to claim that he or she will take the kids, or take away support or insurance so that the kids don’t have money. Under the Colorado Victims Rights Act, a perpetrator cannot take away kids or housing.

Under ยง 14-10-124(1.5)(a)(IX) and (X), C.R.S.2005, a Colorado court is supposed to consider whether one of the spouses has perpetrated child or spousal abuse when making an allocation of parenting time. However, a finding of child abuse or spousal abuse doesn’t automatically result in the court denying parenting time to the parent who perpetrated the abuse, even though it is a relevant factor to determining the child’s best interests. In many cases, the parent who has been charged with child abuse, for example, has worked on issues with a therapist and ultimately the parenting coordinator, and others agree that he or she can have parenting time or even be the primary residential parent.

How do the courts decide these difficult cases? In general, the courts will look at whether the perpetrator received therapy or counseling, how far in the past the incident was, the healthiness of the attachment between the perpetrator and the child, the impact of the abuse on the child, and the perpetrator’s ability to put the child’s needs first.
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Denver_skyline.jpgA motion to modify child support did not go the way a father and ex-husband probably hoped. The father sought to reduce his monthly child support obligation, but the trial court raised it instead. The Colorado Court of Appeals denied the father’s appeal, holding in part that alleged misconduct by the wife did not entitle the father to modification of the child support amount. In re the Marriage of Roddy and Morelli, No. 13CA0632, slip op. (Col. App., Jul. 31, 2014).

The parties were divorced in 2003. The decree of dissolution stated that their minor child would reside primarily with the wife, and that the father would pay $3,000 per month in child support. He filed a motion to modify child support about eight years later, seeking a reduction in the monthly amount based on an increase in parenting time and a decrease in income. Colorado law generally allows modifications to child support if a movant can show “changed circumstances that are substantial and continuing.” C.R.S. 14-10-122(1)(a). After a three-day hearing, however, the court increased the father’s monthly child support obligation to $4,604.

The father filed a motion for post-trial relief, alleging that the wife withheld financial records, and that this entitled him to relief under the Colorado Rules of Civil Procedure’s disclosure requirements. C.R.C.P. 16.2(e)(10). During the modification hearing, the trial court had found the wife’s 2011 tax return to be “the only remotely credible source of information” about her income. Roddy at 1-2. The trial court denied the post-trial motion, though, holding that the wife’s income was not relevant to the issue of modification regardless of any alleged misconduct. The father appealed both the child support order and the post-trial order.
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Samuel_D._Ehrhart,_An_international_high_noon_divorce,_1906.jpgColorado law allows a trial court to order one party to a divorce to pay for the other party’s attorney’s fees. C.R.S. 14-10-119. The court must take both parties’ financial resources into account, including both the amount available to one party and the amount needed by the other, in determining the amount of the order. The statute is silent, however, on the time period, or point in time, that the court should consider in determining an amount. The Colorado Court of Appeals recently considered this issue in a case where the trial court held separate hearings on permanent orders and attorney’s fees about six months apart. In re the Marriage of de Koning, No. 12CA2334, slip op. (Col. App., Jan. 2, 2014). The parties disagreed on which hearing date the court should use in considering the amount of financial resources.

The wife incurred about $90,000 in attorney’s fees during the divorce proceedings. The husband paid about $20,000 of that amount before the entry of permanent orders, and the wife requested that the court order him to pay the remaining amount at the permanent orders hearing. The court entered a decree dissolving the marriage, as well as permanent orders regarding the division of the marital estate, maintenance, and parental responsibilities and child support. It deferred a ruling on attorney’s fees, however, and set a hearing for six months later.

The wife served the husband with discovery requests seeking information about his personal and business financial accounts. He obtained a protective order for this information from the court, which agreed with his claim that any eventual attorney’s fee award would be based on his financial resources on the date of the permanent orders. At the fee hearing, he claimed that he should not be ordered to pay the remainder of the wife’s attorney’s fees because they each had the same amount of assets “on paper.” De Koning at 3.
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Pursuant to C.R.S. 14-10-115, the statutory section regarding establishment of Colorado child support, the primary financial factor leading to a calculation of support is a litigant’s incomes. As discussed in prior postings, there are basic figures, such as income, number of children, and number of overnight visits per year the payor has with the children, that go into generation of a monthly child support amount. Child support is generally easily calculated when there are two people to the equation, both of whom have traditional jobs with readily discernable income. However, when one person is a business owner, or self employed, the analysis of what income figure should be used for that person becomes more complex. Likewise, challenges can arise related to collection of child support from that self employed person. This posting will address both issues as may arise in the legal arena.

As Denver area child support attorneys, we have seen almost any scenario imaginable related to child support. The one scenario requiring perhaps the most scrutiny relates to ascertaining income for a self employed person. This task can arise not only related to the other party’s income, but also our own clients. As a starting point, C.R.S. 14-10-115(a)(1) sets forth definitions of what is or is not income for child support purposes. Subsection (D) states, “Payments received as an independent contractor for labor or services, which payments must be considered income from self-employment.” Subsection (O) states, “Any money drawn by a self-employed individual for personal use that are deducted as a business expense, which money must be considered income from self employment.” Subsection (W) states, “Income from general partnerships, limited partnerships, closely held corporations, or limited liability companies….” In essence, the funds one takes for personal use under any of these scenarios is considered income for child support calculation purposes.
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